Opinion
J-A26041-16 No. 376 WDA 2016
11-21-2016
DENISE SHAFFER, Appellant v. JOHN SHAFFER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order February 10, 2016 in the Court of Common Pleas of Butler County, Civil Division, No(s): F.C. 11-90318-D BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Denise Shaffer ("Wife") appeals from the December 1, 2015 Order denying Wife's Petition for Special Relief, as modified by the February 10, 2016 Order, following reconsideration. We affirm.
The trial court set forth the relevant facts as follows:
The parties, [Wife] and John Shaffer ("Husband"), were divorced by Decree dated July 3, 2012, and their Property Settlement Agreement ("PSA") was incorporated but not merged into the Decree. The PSA provides for the payment from Husband to Wife of Twenty-Five Thousand Dollars ($25,000.00) in five (5) equal installments, as payment for Wife's interest in jointly titled property in Venango County, Pennsylvania. The PSA further provides for alimony payments from Husband to Wife in the monthly amount of Two Thousand Dollars ($2,000.00) through December 1, 2016[, or until Wife's cohabitation with an unrelated adult male].
On August 24, 2012, the parties entered into a "Payment Adjustment," modifying the dates upon which Husband was to make payments for Wife's interest in the Venango County property. The Payment Adjustment was formally adopted in the
Addendum to [the PSA] ["First Addendum"][,] filed on October 24, 2012.Trial Court Order, 12/1/15, at 1-2 (footnotes added and one footnote omitted). The Second Addendum was incorporated but not merged into the Decree for enforcement purposes.
On November 17, 2014, the parties entered into a Second Addendum to [the PSA] ["Second Addendum"], providing that Husband's obligation to pay Wife alimony is terminated effective January 1, 2015[, as the parties agreed that Husband's alimony obligation has been fully satisfied.] The Second Addendum further provides that the parties shall equally share the children's unreimbursed medical expenses, where previously it was Wife's obligation to pay the first $250.00 of those expenses.
Both the PSA and the First Addendum specifically allow for prepayment of any of the land installment payments without penalty to Husband.
In a separate Consent Order issued on the same day, the trial court vacated a previous Order that prohibited contact between the parties' children and Wife's boyfriend, Eric Avondo ("Avondo").
Wife subsequently filed a Petition for Special Relief, arguing that the Second Addendum did not represent the parties' entire agreement, and requesting the trial court to set aside or amend the Second Addendum. On December 1, 2015, the trial court denied Wife's Petition, finding that the Second Addendum represents the parties' entire agreement. On this basis, the trial court refused to consider evidence of a contemporaneous agreement. See Trial Court Order, 12/1/15, at 3, 5. The trial court also found that Wife freely entered into the Second Addendum without fraud, undue influence or duress. See id. at 4-5. Accordingly, the trial court upheld the PSA, as well as both Addendums, as written. See id. at 5. The trial court ordered Husband to pay Wife $5,000 for the land installment payment that was owed by April 1, 2015, less an alimony overpayment of $2,412.61. See id. The trial court also ordered Husband to pay $500 for Wife's counsel fees, as "reasonable enforcement expenses" for his overdue payment. Id.
In support of her position, Wife offered into evidence the following text messages between the parties, indicating that Husband and Wife discussed additional terms that were not included in the Second Addendum:
[Husband]: Never mind. I have the call with the lawyer tomorrow. Is this what you said yesterday?
• I pay off [our son's] car $10,000
• I give two checks @ $6500 each
• Eliminate future alimony
• Eliminate the $250 annual medical for kids
• Eliminate paper on [Avondo]
I would like to send an email to my lawyer tonight so she knows what I want to discuss with her at 9am.Exhibit F; see also N.T., 9/24/15, at 19-20 (wherein the trial court admitted the text messages into evidence as Exhibit F). Because the trial court found that the Second Addendum constituted the parties' entire agreement, it admitted the text messages "for the limited purpose of determining whether fraud occurred." Trial Court Order, 12/1/15, at 2.
[Wife]: That is what we talked about.
Husband filed a Motion for Reconsideration, and attached thereto a copy of a check written to Wife for $10,000, dated November 21, 2014. After a hearing, the trial court found that Husband had complied with the terms of the First Addendum, and amended the December 1, 2015 Order, by striking the provision that required Husband to pay the land installment payment due on April 1, 2015, and vacating the obligation for counsel fees. See Trial Court Order, 2/10/16. The trial court ordered Wife to pay Husband the alimony overpayment. See id.
Wife filed a Motion for Reconsideration and Stay, which the trial court denied in separate Orders. Wife filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Wife raises the following questions for our review:
I. Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in finding that the [Second Addendum,] prepared by Husband's counsel on his behalf and presented to Wife surreptitiously, resulting in Wife signing the same without her counsel's knowledge or advice, represents the entire contract of the parties[?]
II. Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in finding that the [Second Addendum,] prepared by Husband's counsel on his behalf and presented to Wife surreptitiously, resulting in Wife signing the same without her counsel's knowledge or advice, was not obtained by fraudulent means[?]
III. Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in failing to hold that Husband's counsel's violation of the Pennsylvania Rules of Professional Conduct by communicating with a represented party through a third person, in itself or in considering the totality of the circumstances, invalidated the purported contract or made it subject to reform due, inter alia, to counsel's overreaching, which is against public policy and renders an unconscionable result[?]
IV. Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in finding that the [Second Addendum,] prepared by Husband's counsel on his behalf and presented to Wife surreptitiously, resulting in Wife signing the same without her counsel's knowledge or advice, was entered into freely without undue influence or duress[?]Brief for Appellant at 12-13 (issues renumbered).
V. Whether the [t]rial [c]ourt erred as a matter of law or abused its discretion in reversing[,] upon reconsideration[,] its determination that Wife was still owed two land payments, and counsel fees as a result thereof, where Husband appended to his Motion for Reconsideration a copy of a check, which copy contained a statement regarding its purpose not appearing on the original check, and a copy of the unaltered check had been entered as an exhibit in the underlying hearing[?]
The determination of marital property rights through prenuptial, postnuptial and settlement agreements has long been permitted, and even encouraged. ... Moreover, a court's order upholding the agreement in divorce proceedings is subject to an abuse of discretion or error of law standard of review. An abuse of discretion is not lightly found, as it requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures. We will not usurp the trial court's fact[-]finding function.Lugg v . Lugg , 64 A.3d 1109, 1110 n.1 (Pa. Super. 2013) (citing Paroly v. Paroly , 876 A.2d 1061, 1063 (Pa. Super. 2005)) (internal citations and quotation marks omitted).
We will consider Wife's first and second claims together. In her first claim, Wife contends that the trial court erred by finding that the Second Addendum represents the entire contract between the parties. Brief for Appellant at 21. Wife argues that although she agreed to terminate alimony, she did so in exchange for consideration that did not appear in the Second Addendum, and she asserts that the above-mentioned text messages provide evidence of this consideration. Id. Wife asserts that because the Second Addendum is not a fully integrated agreement for purposes of the parol evidence rule, the trial court abused its discretion in failing to reform the Second Addendum to include the terms discussed in the text messages. Id. at 21, 23.
In her second claim, Wife argues that the trial court erred in finding that Wife's agreement to the Second Addendum was not obtained through fraud. Id. at 23. Wife asserts that Husband fraudulently induced her to sign the Second Addendum, which did not contain all of the terms that the parties had discussed in their text messages, without the assistance of counsel. Id. at 25-26. Additionally, Wife claims that Husband induced her to sign the "incomplete" Second Addendum by assuring her that he would pay the sums referred to in the text messages. Id. Wife also argues that Husband partially complied with their text message agreement by sending her a check for $10,000, but that Husband subsequently altered the memo line of the check to indicate that it represented the final two land installment payments, consistent with the PSA and First Addendum. Id. at 26 n.9.
The trial court considered these claims in its December 1, 2015 Order, wherein it set forth the relevant law concerning the validity of the property settlement agreements, the parol evidence rule, and Wife's allegation of fraud. See Trial Court Order, 12/1/15, at 2-3, 4. The trial court considered the relevant evidence, and properly found that Husband and Wife intended to modify the terms of their PSA; the Second Addendum represents the entire agreement between the parties; the Second Addendum was entered into freely, without fraud, undue influence or duress; and accordingly, any evidence of a contemporaneous agreement (the text messages) must be excluded. See id. at 3-5. We adopt the sound reasoning of the trial court in regard to Wife's first and second claims and affirm on this basis. See id. at 2-5.
To the extent that Wife claims that the alleged fraud was a result of the failure of Husband's counsel to consult with Wife's counsel, we will address these arguments with her third and fourth claims.
As Wife's third and fourth issues are related, we will address them together. In her third claim, Wife argues that the trial court erred by declining to hold that Husband's counsel violated Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating "about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." Brief for Appellant at 29 (quoting Pa.R.P.C. 4.2); see also id. at 26- 27. Wife also cites to Comment 4 to Rule 4.2, and Rule 8.4, and claims that Husband's counsel violated Rule 4.2 by obtaining her signature on the Second Addendum through Husband, without the presence of Wife's counsel, and that this violation renders an unconscionable result. Brief for Appellant at 29-31; see also id. at 26-29. Wife asserts that, as a result of an ethical violation by Husband's counsel, the Second Addendum must be reformed to include the terms discussed by the parties via text message. Id. at 30-31; see also id. at 29.
Comment 4 to Rule 4.2 provides, in relevant part, that "[a] lawyer may not make a communication prohibited by this Rule through the acts of another." Pa.R.P.C. 4.2, cmt. 4. Rule 8.4 provides, in relevant part, that "[i]t is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional conduct, knowingly assist or induce another to do so, or do so through the acts of another." Pa.R.P.C. 8.4(a).
Wife's fourth issue also appears to invoke a claim of undue influence or duress. However, Wife does not set forth the required elements of either defense. Therefore, this claim is waived. Rather, Wife merely restates that Husband's counsel violated Rule 4.2 by drafting the "incomplete" Second Addendum, and by using Husband to obtain Wife's signature, without first communicating with Wife's counsel. Brief for Appellant at 26-29. Additionally, to the extent that Wife argues that Husband engaged in fraud by "providing the appearance of partial performance" of the purported text message agreement, we defer to the trial court's sound reasoning as to the issue of fraud, and note that the Second Addendum does not require Husband to pay Wife a lump sum of $10,000 as consideration for termination of alimony. See Trial Court Order, 12/1/15, at 4-5; see also id. at 4 (stating that "[t]he text messages merely demonstrate that additional terms were discussed.").
Wife does not similarly contest the validity of the Consent Order, despite the fact that Wife also signed the Consent Order without consulting counsel. Moreover, because Wife testified at trial that she and Avondo began cohabitating in February or March of 2015, see N.T., 9/24/15, at 35-36, Husband's requirement to pay alimony would have been terminated at that time, pursuant to the PSA.
Initially, in regards to Wife's representation at the time the parties entered into the Second Addendum, the trial court noted the following:
The Second Addendum was prepared by Husband's counsel upon Husband's request. The parties reviewed and signed the document without the assistance of counsel. After the document was signed and notarized, Husband requested that his attorney file the same. Wife claims that she was represented by counsel at the time, while Husband contends that Wife communicated to him that she was no longer represented. The [trial court] notes that Wife's counsel had not withdrawn her appearance[;] however[,] the divorce litigation ended on July 3, 2012, upon entry of the Decree in Divorce.Trial Court Order, 12/1/16, at 3 n.2; see also id. (declining to make a finding regarding counsel's conduct, "as it is not relevant to a contract defense under the facts of this case.").
Assuming that Wife was still represented by counsel at the time the parties entered into the Second Addendum, Wife has nevertheless failed to show that an ethical violation occurred in this case. Rule 4.2 prohibits communication between a lawyer and another individual who is represented by counsel, but it does not prohibit communications between two individuals who are represented by counsel. See Pa.R.P.C. 4.2; see also id., cmt. 4 (stating that "[p]arties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make."); ABA Formal Opinion 11-461, at 1.
Here, there is no evidence that Husband's counsel communicated directly with Wife, or that counsel used Husband to make a prohibited communication. Indeed, Wife testified that she never communicated with Husband's counsel. See N.T. 9/24/15, at 31. Husband's counsel drafted the Second Addendum, and sent it to Husband for his review. See id. at 41. Husband subsequently sent the draft to Wife via email, and the parties independently arranged to meet and execute the agreement. See id. at 47; see also id. at 30-31 (wherein Wife testified that she met Husband to sign the Second Addendum before a notary, and she did not consult her attorney before doing so). Husband then returned the fully executed Second Addendum to his counsel for filing. Therefore, there is no evidence that Husband's counsel breached her ethical duties under Rule 4.2. See Lugg , 64 A.3d at 1111, 1114 (finding that Husband's counsel did not breach Rule 4.2, where counsel drafted a post-nuptial agreement, and Husband and Wife met independently to sign the agreement). Moreover, even if Wife had provided sufficient evidence of an ethical breach, she has cited to no legal authority to support the proposition that the proper remedy for such a breach would be to invalidate or reform the parties' agreement. See id. at 1114 (stating that "even assuming the validity of [the ethical breach] claim, [Wife] has presented no legal authority that her remedy would be to renounce the agreement."). Accordingly, this claim is without merit.
Husband's counsel admits that notice of intent to file the documents should have been provided to all counsel of record "as a precaution." Husband's Brief at 2 n.1. However, at the time of filing, the Second Addendum was uncontested, and therefore, Husband was not required to provide Wife or her counsel notice before presenting the Motion to Adopt the Second Addendum to the trial court. See Butler County L.R.C.P. L208.2(d) (stating that "[a]ny motion [] bearing the written consent of the opposing party, or the opposing party's attorney of record, may be submitted to the assigned judge without formal notice of presentation...."); see also Trial Court Order, 11/25/14, at 1. (including notation that the Motion to Adopt the Second Addendum was consented to by all parties).
In her fifth claim, Wife asserts that the trial court erred by finding, in its February 10, 2016 Order, that Husband had paid the two land installment payments, thereby satisfying the December 1, 2015 Order. Brief for Appellant at 31. Wife claims that the $10,000 check she received from Husband was meant to pay off their son's car, rather than to satisfy the fourth and fifth land installment payments. Id. at 31-32. Wife further asserts that the copy of the check attached to Husband's Motion for Reconsideration had been altered to include "Land Payments 4 + 5" in the memo line, whereas the copy of the canceled check admitted into evidence during the hearing had a blank memo line. Id. at 31-32.
After Wife filed her Petition for Special Relief, the trial court conducted a hearing on September 24, 2015. At the hearing, Wife testified that the $10,000 check was meant to pay off their son's car, as indicated in their text messages. See N.T., 9/24/15, at 26, 27. A copy of the check was admitted into evidence. See Exhibit H; see also N.T., 9/24/4, at 28 (wherein Exhibit H was admitted into evidence). Wife also testified that Husband had previously made land installment payments to her in accordance with the PSA and First Addendum. See N.T., 9/24/15, at 27. In its December 1, 2015 Order, the trial court ordered Husband to pay Wife $5,000 for the land installment payment that had been due on April 1, 2015. Husband subsequently filed a Motion for Reconsideration, attaching the check for $10,000, dated November 21, 2015, and explaining that the check included both the overdue payment and a prepayment for the final installment. Wife filed a Response, wherein she again cited to the text messages and argued that the payment should be considered a payment for their son's car. The trial court conducted a hearing, at which the parties discussed the possibility of a mistake about the purpose of the $10,000 check, resulting in the trial court granting reconsideration to consider the possibility of such a mistake. See N.T., 12/22/15, at 2-5. Upon consideration of Husband's Motion and the entire record of the case, including the exhibits entered into evidence during the hearing, the trial court found that Husband had complied with the terms of the PSA and First Addendum by paying Wife for the land installment payment that was owed by April 1, 2015. See Trial Court Order, 2/10/16. Discerning no abuse of discretion or legal error, we will not disrupt the trial court's finding on appeal. See Lugg , 64 A.3d at 1110 n.1; see also Stamerro v. Stamerro , 889 A.2d 1251, 1257 (Pa. Super. 2005) (stating that "[w]hen interpreting a marital settlement agreement, the trial court is the sole determiner of facts[,] and absent an abuse of discretion, we will not usurp the trial court's fact-finding function.") (quotation omitted). Thus, Wife is not entitled to relief on her final claim.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2016
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